Attempting to Possess a Border Controlled Substance charges

In mid-2011, the Australian Federal Police obtained a warrant pursuant to section 46A Telecommunications (Interception and Access) Act 1979 enabling them to lawfully intercept and monitor the mobile telephone used by a person whom they suspected of being involved in drug supply of cocaine, with that cocaine suspected of having been unlawfully imported into Australia.

Months later, one of the intercepted calls involved the accused talking with the AFP suspect where they engaged in a cryptic conversation discussing a quantity of prohibited drugs that were going to be sent from Sydney to Perth. Federal Agents then made contact with Australia Post on the expectation that an Express Post package would be received. Upon notification from an employee of Australia Post that the package had arrived, the police seized the package and conducted an x-ray and a physical examination of the contents which revealed a solid white substance that turned out to be a block of cocaine with a gross weight of 55 grams.

Subsequent tests were able to identify the cocaine as being of Columbian origin converted to cocaine hydrochloride using Colombian processing methodology, containing levamisole, dexamisole and sucrose as cutting agents to reduce the purity to 64%, with a pure weight of just over 30 grams.

The cocaine was then substituted with an inert substance and placed inside the original packaging and returned to Australia Post for delivery. The original suspect, the subject of the telephone intercept, had been provided with the tracking code for the package by the accused. The suspect contacted post office staff, who inadvertently asked whether the suspect was in fact a member of the Australian Federal Police.

Police were issued with a Controlled Operation Authority pursuant to section 15GI of the Crimes Act 1914 (Commonwealth) authorising police to attempt delivery of the package. They were unsuccessful, but later arrested the suspect and charged him with attempting to possess a marketable quantity of a border controlled drug.

The accused was later spoken to by police and declined to be interviewed. He was issued with court notices for the offence of Aid, abet, counsel or procure the attempted possession of a marketable quantity of a border controlled drug, namely cocaine, reasonable suspected of having been unlawfully imported, contrary to section 307.9(1) of the Criminal Code Act 1995 (Commonwealth). Potential Penalties: The potential penalty for the offence is 25 years imprisonment or a fine of up to $550,000.

During the recorded phone calls, the following paraphrased exchanges took place:

Accused:(In Sydney) “Can you do me a massive favour? If I send you over some cake, can you sort it out straight away?”

Accused:“He just gave me another start so I don’t want to fuck up, that’s all.”

Suspect:“I’m the same thing, give me a start here.”

There were a number of phone calls recorded where both the accused and the suspect regarding efforts to be made to collect the package from Australia Post. The phone used by the accused was registered to him. The address on the postal item was that of the neighbour of the accused. The intended recipient of the package was almost identical to the name of the suspect in Western Australia, with the first name changed to that of a woman. Police purported to identify the voice of the accused on the recorded telephone calls. There was potentially some scope to argue that the police were not “ad hoc” experts in identifying the accused’s voice (see Irani v R [2008] NSWCCA 217) – however the only way to test that was in court. If this issue was left for trial, the accused would almost certainly miss out on any leniency by way of an early plea of guilty. For an early plea, he could have expected a discount of up to 25%.

Representation:

The accused was not represented by this firm initially. The matter was set down for jury trial. The accused sought alternate representation only weeks prior to the trial. He had missed the opportunity for a discount of 25% having been advised by his former legal representatives to plead not guilty. The potential defence to the allegations was set out in section 307.9(4) of the Criminal Code, namely that an offence is not committed if the person in possession proves that he neither intended to sell any of the drugs nor believed that another person intended to sell any of the drugs. For the accused to be successful at trial, it would have to be proved on the balance of probabilities that the drug belonged to the accused, who asked the suspect in Perth to either hold it for him or wash the cutting agents from the drug and return it to him.

The intercepted telephone calls showed that the man in Perth was due to travel to Sydney within days. The accused was due to travel to Perth in the near future. It made little sense that the drugs would be sent to Perth with all the risks of detection by authorities, when the person who was going to deal with the drugs was coming to Sydney anyway. The words “He just gave me another start” could be interpreted as being a supplier helping a down-line supplier get going as a dealer.

The accused indicated that he wished to plead guilty. He had a significant drug habit at the time the drugs were mailed to Perth. He intended travelling to Perth to share the drugs with his friend – this in itself would constitute supply. The weight of the drugs was somewhat problematic as it far exceeded the likely drug usage that the accused and his friend could achieve in a limited period of time, creating a strong inference that at least some of the drugs would be sold.

Guilty Plea:

Despite the lateness of the plea, we still managed to successfully argue for a modicum of leniency to be shown by way of a discount on sentence for the plea. There was significant financial saving to the Commonwealth, as most of the trial witnesses would have had to fly to Sydney and be accommodated for the duration of the trial. The Commonwealth refer to this as “facilitating the course of justice”.

The accused had undergone difficulties in his life which gave rise to his involvement in the use of cocaine. He was a person who had significant involvement with charitable work, and he managed to wean himself of drugs. A psychological report was tendered in the sentencing proceedings and our client gave evidence, expressing contrition, remorse and an insight as to the effect of drugs not only upon himself, but also upon the larger community.

Ultimately, he was sentenced to a non-parole period of 2 years 6 months. This was an excellent result given the lateness of his plea and the potential penalties available.

Why Nyman Gibson Miralis?

The brief of evidence in this case was particularly strong and the chances of defending the matter were remote, at best. Our accredited criminal law specialist properly analysed the brief and listened to the telephone intercept material prior to advising the client. It turns out that the client had wanted to plead guilty but had been holding off entering a plea based on the presumptuous optimism shown by his previous legal representatives. Unfortunately it resulted in the loss of a significant discount on penalty, even though the final result was at the lower end of the sentencing range.